'Dead Man's Act' keeps witnesses mum in Illinois civil trials

Amelia Flood Jun. 3, 2009, 11:00am

Pirates were right when they said, "Dead men tell no tales."

Under Illinois law, deceased parties in lawsuits don't either.

The so-called "Dead Man's Act" bars evidence of conversations with deceased parties and events that took place in their presence. In a recent trial under way in Madison County, the law has caused some complicated legal maneuvering in the on-going suits of Cynthia and Russell Martin vs. Julia Groves, as special representative of the estate of David Groves, et. al.

Attorneys for the estate of David Groves have used the act to bar testimony related to his alleged intoxication on the night he collided with a tractor trailer that was backing up. The accident has sparked several suits and countersuits. Attorneys for the remaining defendants, truck driver Jose Velazquez, his employer and Proctor and Gamble Manufacturing, are asking Circuit Judge Barbara Crowder to reexamine her decision to bar the evidence.

The Dead Man's Act applies to decedents in civil cases filed after 1973. Under the law, adverse parties may not testify about conversations they had with the dead person. They are also barred from bringing evidence about events that took place in the presence of the deceased. This is based on the idea that a dead party cannot refute testimony against them.

Similar laws are in place in Idaho, Pennsylvania, and North Carolina.

The law bars a broad swath of evidence as illustrated in the Cook County case Rerack vs. Lally. Plaintiff Stanislaw Rerack sued Mary Kay Lally, the special representative of the estate of Daniel O'Leary, for negligence in a rear-end collision. The Cook County court applied the Dead Man's Act, barring evidence of the accident and the condition of Rerack's car. Lally received a summary judgment.

Rerack's case reached the appellate court in 1992. He argued that the Dead Man's Act didn't apply to summary judgment and that he should have been allowed to present evidence of his car's condition prior to the accident.

The appeals court ruled that, while Rerack could present new evidence of his car's condition, he could not testify about the actual accident due to the Dead Man's Act.

It ruled the act could apply to summary judgment and sent the case back to Cook County.

In the Martin-Groves case, Crowder's order currently bars defendants Velazquez, Werner Enterprises Inc., and Proctor and Gamble from presenting evidence of Groves' possible intoxication on the night of the accident. Russell Martin and others are also barred from testifying about conversations with Groves and other events leading up to the crash.

Russell Martin was a passenger in the car Groves drove in November 2006. He was severely injured in the accident and a party to the suit.

Defense attorneys for Velazquez, his employer and Proctor and Gamble, have asked Crowder to reconsider her order based on their view that there is outside evidence of Groves' intoxication. They point to blood alcohol serum tests done following the accident at St. Louis University Medical Center. The Dead Man's Act does allow certain evidence to come in when a third, disinterested party testifies to conversations or events. They argue the tests fit that description.

The Martin vs. Groves et. al case is Madison case number 07-L-224.

The Dead Man's Act is 735 ILCS 5/8 201.

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